Ninth Circuit hears arguments on Arizona 20-week abortion ban

[JURIST] The US Court of Appeals for the Ninth Circuit [official website] heard oral arguments [audio recording, WMA] Monday in Isaacson v. Horne [case materials] to consider a new Arizona abortion regulation [HB 2036 materials; JURIST report] that would ban abortions after 20 weeks unless there is a medical emergency. A group of doctors, represented by attorney Janet Crepps from the The Center for Reproductive Rights [advocacy website] opened the session by arguing that Planned Parenthood v. Casey and Gonzales v. Carhart [opinions] hold that "regardless of whether exceptions are made the State may not prohibit any woman from making the ultimate decision to terminate her pregnancy prior to viability. [The Supreme Court] described this rule as the central tenet of the abortion jurisprudence." Crepps also suggested, "There is no debate in the record: at 20 weeks, no fetus is viable. It's a government's intrusion into a woman's autonomy, and that is not acceptable." Defending the law, Maricopa County Attorney Bill Montgomery [official website] argued that the increasing risk of hemmorage to the woman after 20 weeks, and the Arizona legislature's findings of "fetal pain" allow the regulation. Montgomery also argued that the law does not ban abortions after 20 weeks, it merely regulates them. The law provides for abortions in the case of "medical emergency" but also has stipulations imposing misdeamanors against doctors who perform abortions after 20 weeks if that condition is not met. Oral arguments would indicate that the judges were unmoved by Montgomery's arguments, as they repeatedly suggested to him that the regulation does not meet the standards of Casey or Gonzales. Judge Kleinfeld, particularly, argued to both parties during arguments that a future child's pain is a health interest that the regulation should cover, allowing abortions past 20 weeks: "[S]ometimes you can't discover a birth defect until 20 weeks, and sometimes the fetus will be born with a horrible birth defect, which means it's born into hell, gets several months—or years—of operations and pain and then dies, as a baby." The Ninth Circuit enjoined [JURIST report] enforcement of the law in August.

This is the latest development in the ongoing reproductive rights controversy [JURIST backgrounder], and Arizona has had two abortion regulations tested in the courts. Late last month the US District Court for the District of Arizona enjoined Arizona [JURIST report] from implementing a public funding law [HB 2800, PDF] that prohibits funding for health clinics that perform abortions. A Texas court upheld a similar law, while the US Court of Appeals for the Seventh Circuit enjoined an Indiana [JURIST reports] law last month. In addition to Arizona, Alabama, Georgia, Idaho, Indiana, Kansas, Nebraska and Oklahoma [JURIST reports] have banned abortions in some form after 20-weeks.

 

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